draft environmental impact statement ("EIS") on Kerr-McGee's
plans for permanent decommissioning of the West Chicago site and
delayed approval of the plan in violation of the NEPA. These
allegations are contained in Counts I through IV of the
Before considering these allegations, the court must first
decide the issue, raised in both motions, of whether it may
properly assert subject matter over this cause.
The court of appeals has exclusive jurisdiction to review final
orders entered by the NRC. 28 U.S.C. § 2342(4); 42 U.S.C. § 2239(b).
The government contends that the nature of this action
is to question the validity of the NRC's order.*fn1
Specifically, the government contends that inasmuch as Counts
V through XII of the complaint attack the validity of the
licensing amendment there can be no doubt that this was a final
order in a licensing proceeding over which the court of appeals
has exclusive jurisdiction to review. Natural Resources Defense
Counsel v. NRC, 606 F.2d 1261 (D.C.Cir. 1979). Of course, a
specific grant of authority to the court of appeals supersedes
the more general grants of federal question or mandamus
jurisdiction upon which West Chicago bases this case. For this
reason, the NRC urges this court to dismiss plaintiff's complaint
and deny its preliminary injunction to the extent that they
challenge the licensing amendment. The court agrees.
The NRC also asserts that the court should dismiss West
Chicago's claim that the procedures employed by the NRC in
granting the license amendment violated West Chicago's right to
due process on the same subject matter jurisdiction grounds.
Involved here is an express jurisdictional mandate to the court
of appeals which this court must respect. Although the plaintiff
is raising a constitutional claim, it is directed to, and arises
from the NRC's grant of a license amendment under the AEA.
Therefore, this constitutional challenge pertains to the final
order issued by the NRC and must be reviewed by the court of
appeals. See Campos v. FCC, 487 F. Supp. 865 (N.D.Ill. 1980),
aff'd on other grounds, 650 F.2d 890 (7th Cir. 1981). See also
Robinson v. Dow, 522 F.2d 855 (6th Cir. 1975). Contra,
Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231
(3d Cir. 1980), cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66
L.Ed.2d 824 (1981).
Finally, the NRC contends that this court lacks jurisdiction to
address the plaintiff's claims concerning the decommissioning
plan of the Kerr-McGee site as set forth in Counts I through IV
of the complaint. Since a license amendment approving a
decommissioning plan has not yet been issued by the NRC, these
counts do not suffer from the same jurisdictional infirmities as
the other counts in the complaint. However, the allegations
concerning the decommissioning plan relate to an amendment that
has not been issued. As such, the action is clearly not ripe for
judicial review. Once a final order is issued by the NRC, review
is proper before the court of appeals. In the meantime, an
interim remedy is available in the form of pendent lite relief.
See First Jersey Securities, Inc. v. Bergen, 605 F.2d 690 (3d
Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62
L.Ed.2d 756 (1980); San Luis Obispo Mothers for Peace v. Hendrie,
502 F. Supp. 408 (D.D.C. 1981).
In sum, this court concludes that it lacks proper subject
matter jurisdiction to hear claims arising out of a final order
entered by the NRC. Nor can it address claims that are not yet
ripe for judicial determination. Rather than address the
jurisdictional issue, the plaintiff argues primarily the merits
of its entitlement to mandamus relief. While the court
sympathizes with the plaintiff's desire for a court to reach the
merits of its claims, we conclude that the proper forum
for this action can be found in the court of appeals.
For the foregoing reasons, the court holds that it lacks proper
subject matter jurisdiction over this action. The plaintiff's
petition for a preliminary injunction is denied. The defendants'
motion to dismiss is granted. The cause is dismissed.